BP Settles Criminal Case With DOJ

[Official BP Logo depiction from wikipedia] 

Yesterday, we learned more about the anticipated resolution of criminal charges by the BP Oil Company with the Department of Justice. The charges, of course, relate to the Gulf of Mexico oil spill--the worst offshore oil spill in U.S. history. According to news reports, BP has settled its own (corporate) criminal liability by pleading guilty to felony misconduct and agreeing to pay a total penalty of about $4.5 billion over the next six years.

This announcement by the U.S. Department of Justice pertains only to BP's corporate criminal liability. Other criminal charges against several executives, along with some civil claims for damages, remain unresolved.

What do you think about this resolution, which is the largest monetary penalty imposed in U.S. history? Was it enough?

Lindsay Lohan: To Leak Or Not To Leak? To Deal Or Not To Deal?

With all the ranting and raving by and for actor Charlie Sheen, perhaps you had forgotten all about the troubles and travails of actress Lindsay Lohan!  But now, Ms. Lohan is back in the picture!  You may recall that she faces a felony charge for allegedly stealing a necklace from a Venice, California jewelry store.  Ms. Lohan and her attorney maintain that this was just a big mistake and point out that the necklace was quickly returned.  Well, now, according to various news reports, the actress has allegedly refused a plea bargain deal which might have resulted in jail time for the alleged theft.  I have a couple of reactions, as a criminal attorney, to this news report and talk about plea bargaining.
1.  LEAKS TO THE NEWS MEDIA IN HIGH PROFILE CRIMINAL CASES:

First of all, as a former federal prosecutor and, currently, as an Augusta, Georgia criminal defense attorney, I am appalled that private discussions about potential plea bargains are being leaked and aired in the news media!  This is outrageous and unfair to Ms. Lohan and to any other criminal defendant who is in her position!

2.  DEFENDANTS SHOULD DECIDE WHETHER TO "DEAL OR NO DEAL:"

And second, this case also illustrates the important point that, in our criminal justice system, each defendant should be the one to decide whether or not to accept a plea bargain, or whether to go to trial.  In other words, it is not up to a criminal lawyer, or anyone in the news media, to decide whether to accept a deal.  Of course, let me emphasize that, in this case, there is absolutely no indication that anyone is pressuring Lohan to cop a plea.  But I simply wanted to make a point that, in my experience, in other criminal cases, I have heard of criminal lawyers who will "lean on" their clients to accept a deal.  As a criminal defense lawyer, I find this practice to be appalling!  I would never push a client to plead guilty to anything!  And in this case, only Ms. Lohan, after consulting with her criminal defense attorney, should decide whether to "deal or no deal."   Don't you agree?

Plea Bargaining and How To Avoid Its Evil Side

It is a fact that most criminal cases don't go to trial; instead, most cases, (perhaps 80-90% of all criminal cases), result in plea bargains. Plea bargaining is like the WD-40 of the criminal justice system. Cutting deals to avoid trials generally benefits both parties and it also removes the "squeaks" from our overloaded courts. In other words, without some plea bargaining, our courts would arguably collapse from the weight of all the defendants demanding trials!

However, as a former federal prosecutor, (and currently as a criminal defense lawyer), I can tell you that prosecutors should try to avoid some of the evil, or seemier, sides of plea bargaining. Here are a few ideas:

1. Consult With Your Crime Victim: Most of the bad rap on plea bargaining comes from the prosecutor not taking the time to simply talk with the crime victim, (or victim's family members), before cutting a deal with the defense attorney. Imagine how you would feel if your family member has been murdered and the prosecutor has allowed the defendant to plead guilty to a lessor charge without giving you any forewarning or explanation. You would be outraged! Over the years, I have learned that, if you communicate with a victim, (or victim's family members), and develop a good rapport, then they will trust you if you need to plea bargain because of evidentiary problems. But you must earn that trust through communication!

2. Consult With Your Case Investigator: Also, imagine how you would feel if you were a criminal investigator and you have worked your tail off to catch a bad guy, and then some wet-behind-the-ears prosecutor has plea bargained your case to "spitting on the sidewalk" and has done so without ever calling you to get your input! This happens in the real world! And it explains why investigators often dislike plea bargaining, (and some prosecutors)!

3. Avoid Plea Bargaining As To Sentence: A lot of the bad rap about plea bargaining also comes from the prosecutor agreeing to a specific sentence that the defendant, "Sluggo," gets to serve. In other words, don't you agree that there is something a little unsavory about allowing Sluggo to have a say-so about his own sentence? Prosecutors can avoid this scenario by attempting to plea bargain only as to the number of counts a defendant must plead guilty to, or by allowing a defendant to plead guilty to a lesser included offense, but leaving the question of sentencing up to the judge.

These are just some of the ideas that I have learned, as a former prosecutor, about how to lessen the "evils" of plea bargaining. Again, plea bargaining may be evil, but it is a necessary evil. And the primary key to avoiding its seemier side is for the prosecutor to COMMUNICATE -- with the crime victim, (or victim's family members), and with the investigator who made the case.

Don't you agree that good communication is often the key solution to problems in most relationships?!

"Rolling Over" in Criminal Cases

This blog article is about "rolling over!" No, I'm not referring to dogs rolling over on the grass. I'm talking about the potential advantages to a defendant in rolling over in a criminal case against his or her co-conspirators!

This topic was a big news item this past week when ponzi king Bernie Madoff's chief financial aide, Frank DiPascali, entered a guilty plea in federal court and reportedly agreed to "roll over" against others allegedly involved in their investment fraud scheme which ripped off investors of billions of dollars.

Every criminal case is different, but the old adage is often true that "the first to squeal gets the deal." The truth is that our criminal justice system promotes this practice of defendants "rolling over" on each other, as part of the plea bargaining process. For example, prosecutors will often focus on the "lower rung" defendants in a conspiracy and offer them a deal if they will cooperate against their higher ups. The point is that, in many cases, (especially if you can't beat the rap), it is often advantageous for a defendant, (after consulting with his defense attorney), to take the deal and squeal.

In federal court, there may be real incentives for a defendant to cooperate with the government. For example, if a defendant faces criminal charges carrying tough mandatory minimum sentences, the only way for him to avoid that mandatory minimum, (aside from beating the rap), is to cooperate and convince the federal prosecutor to file what is known as a "5K1.1 motion." This motion, filed by the government on behalf of defendants who have provided "substantial assistance" in the investigation of others, allows the sentencing judge to "depart downward" below the mandatory minimum sentence. So, "rolling over" is a big part of our criminal justice system and ratting on others has its rewards.

Do you believe defendants rat on each other more today than they did 25 or 50 years ago? Is there still left any "honor among thieves?!"